Did justice Scalia have a theory of interpretation?

AuthorLawson, Gary
PositionAntonin Scalia

ABSTRACT

II seems beyond bizarre to ask whether' justice Scalia had a theory of textual interpretation. If he did not have such a theory, what were he and his critics talking about for the past three decades? The answer is that they were talking about part of a theory of textual interpretation but not an actual, complete theory. A complete theory of textual interpretation must prescribe principles of admissibility (what counts towards meaning), significance (how much does the admissible evidence count), standards of proof (how much evidence do you need for a justified conclusion), burdens of proof (does inertia lie with acceptance or rejection of a proposed meaning), and closure (when is the evidence set adequate to justify a claim). Justice Scalia said a great deal about principles of admissibility and significance, but he said very little about the other essential elements of an interpretative theory. Moreover, much of what justice Scalia scud, and much else that can be inferred from his writings, about statutes and constitutions concerned theories of adjudication rather than theories of interpretation. The relationship between interpretation--the ascertainment of textual meaning--and adjudication--the determination of real- world cases-is actually quite complex, even if one has a normative theory of adjudication that says to decide cases as much as possible in accordance with interpretatively derived textual meaning. In the end, one probably cannot say that Justice Scalia had a theory of textual interpretation. He came close, however', to articulating a complete theory of how to apply statutes and constitutions in adjudication; he was lacking only a clear identification of the appropriate standard of proof for resolving legal claims in adjudication.

INTRODUCTION

Did Justice Scalia have a theory of textual interpretation for either statutes or the United States Constitution?

The question seems beyond bizarre. Justice Scalia cowrote two of the leading books in the past few generations on statutory and constitutional interpretation. (1) Several of his articles on constitutional interpretation are modern classics. (2) He is widely seen as having moved the Supreme Court significantly towards his favored position on statutory interpretation; Justice Kagan, for example, said in 2015 that "Justice Scalia has taught everybody how to do statutory interpretation differently." (3) Advocates of originalism as a method of constitutional interpretation universally see him as quite possibly the most important figure in the development of that methodology. (4) Justice Scalia certainly thought that he had a theory of interpretation; the word "interpretation," after all, figures prominently in the titles of both of his books. (5) Indeed, in his collaborative work with Bryan Garner, he was deeply critical of J. Harvie Wilkinson's celebration of nontheory, (6) and he labeled nontextualist modes of analysis as "anything but fully developed theories of interpretation," (7) presumably in contrast to his own fully developed interpretative theory. Whether one calls his method of interpretation textualism or originalism (along with whatever qualifying adjectives one attaches to either of those terms), and whether one thinks that method is sound or unsound, surely no one doubts that Justice Scalia, perhaps more clearly than any other modern--or, for that matter, nonmodern--jurist, had an articulated theory of statutory and constitutional interpretation. If Justice Scalia did not have a theory of interpretation, then what exactly were he and his critics talking about for the past three decades?

My goal here is to make the opening question seem just a bit less bizarre than it may appear at first glance. It is actually a nontrivial question whether Justice Scalia had a theory of textual interpretation, for either statutory or constitutional texts. To answer that nontrivial question, one must focus on two more fundamental questions that all too often lurk unasked under the radar: (1) what elements must a theory of textual interpretation possess in order to be an actual theory of textual interpretation, and (2) what is the relationship, if any, between theories of textual interpretation and theories of legal adjudication? Both questions are quite profound, extremely difficult, and far subtler than is often acknowledged.

In Part I of this Essay, I will outline the fundamental elements of a theory of textual interpretation and see whether Justice Scalia's position reflects all of those necessary elements. I think it does not, though his seeming competitors (including me) are in no better a position; it may well be that no one in contemporary American jurisprudence (including me) actually has a bona fide theory of textual interpretation. In Part II, I will tentatively explore the relationship between interpretation and adjudication and see the extent to which Justice Scalia's views connect those two quite different activities. In the end, I conclude that while Justice Scalia did not have a theory of interpretation, he came very close to having a fully developed theory of adjudication, though he often conflated adjudication with interpretation, as do many other jurists and scholars.

A great many legal debates are underproductive because participants in those debates do not clearly identify whether they are talking about interpretation or adjudication and, if they are talking about the former, which elements of a theory of interpretation they are discussing. An examination of Justice Scalia's jurisprudential legacy provides an excellent vehicle for framing ongoing discussions of both interpretation and adjudication in a more focused and constructive fashion.

  1. DOES ANYBODY REALLY KNOW WHAT A THEORY OF INTERPRETATION IS? DOES ANYBODY REALLY CARE?

    A theory of interpretation is a theory of meaning. When one interprets a text, one assigns a meaning to that text. That meaning, in whole or in part, might be thought to be lodged in such things as the communicative signals that one ascertains (or thinks that one ascertains) were encoded in that text by its maker, in one's own consciousness or preferences, in some normative conception of what a good text would mean in the circumstances at hand, and so forth. For present purposes, it does not matter how one fills in that element of a theory of textual meaning. (There are, in fact, right and wrong ways to fill in that element, but that is not my topic here. (8) My focus for now is on what set of questions anyone, whatever they claim their particular theory involves, must either explicitly or implicitly address in order to have a fully functional interpretative theory.

    Interpretation implicates the wider category of proof--or, if one prefers, justification. When one interprets a text, using whatever methods of interpretation one chooses to employ, one is at least implicitly making propositional claims about the text. To be intellectually interesting, those claims must be justifiable in some fashion. As noted above, those claims might involve some externally determined meaning, the contents of one's own consciousness, some normative conception, some mixture of the three, or something else altogether, but interpretation always involves a justifiable claim of some sort. As such, the interpretative claim is subject to proof. The precise form of proof depends on the underlying metaphysics of the claim; one does not necessarily prove normative claims the same way that one proves claims about the intentions of historically situated individuals, and one does not necessarily prove claims about the intentions of historically situated individuals the same way that one proves claims about the hypothetical intentions of legally constructed makers of texts. The key insight is that there is a certain universal structure to the idea of proof that provides a framework for any and all specific instances of proof, including proof of claims regarding textual meaning. I develop that insight about a universal framework for proof and its implications for legal claims at some length in a recent book, (9) but a short summary will hopefully suffice for the present Essay.

    The proof of any proposition, in any discipline regarding any subject, requires attention to at least five elements. Without each and every one of those five elements, one cannot justify claims even in principle.

    First, one must have some means for ascertaining what does and does not count towards a right answer. The law's formal structure for the proof of adjudicative facts in judicial proceedings labels the mechanism for determining what to look for in seeking right answers principles of admissibility, and that is an apt term for the more general idea even outside of that narrow legal context. Every inquiry, in any cognitive context, must have principles of admissibility that determine what counts as evidence for or against a claim. Those principles in some, and even most, contexts might well resemble an idea of free proof much more closely than they resemble the complex and exclusionary evidentiary norms of the American legal system, but they must exist in some form. Even "anything goes" is a principle of admissibility, albeit an unlikely and unhelpful one (because the universe is too vast and diverse to take in as a whole--cognition grinds to a halt unless it can narrow its focus in some fashion to some subset of all possible facts). In the context of interpretative theory, principles of admissibility tell you what counts for or against claims of meaning. A textual theory of interpretation will look to different things than will a normative theory, and theories that give different roles to different kinds of (real or hypothetical) intentions might well have principles of admissibility quite different from each other and even more different from the principles that a textualist or normative theory will involve. It is fair to say that a good...

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